Dimović and others v Serbia (third-party intervention, 2018)
24 November 2017
Facts
The applicants were Romani men living in Vojvodina (Northern Serbia). They were convicted of robbery and burglary. They claimed that they were victims of an unfair trial because their conviction was based on flimsy evidence: a statement made by someone who had died before trial and who was also accused of the robbery and had implicated them. The person had retracted the statement before he died.
The ERRC’s Third-Party Intervention
Relying on widely accepted definitions of the terms “antigypsyism” and “institutional racism”, we set out evidence that there is institutional antigypsyism in Serbia in various spheres: the education system, the child care system, civil registration offices, and particularly the criminal justice system. Referring to specific, very serious incidents of police brutality against Roma and to findings of Council of Europe and UN bodies about discrimination against Roma and the failure to train judges on discrimination, we said it was not surprising that Roma in Serbia feared for their safety and their liberty. We highlighted surveys showing discriminatory attitudes among police in Serbia towards Roma. The surveys showed that a significant number of police officers held stereotypical views about Roma and had a poor understanding of discrimination. We pointed to another survey of a large number of public officials, including judges. The survey provided evidence of ignorance among the judiciary about discrimination. The survey also provided evidence of widespread discriminatory beliefs about Roma among public officials (including judges) and of the widely held view that courts and prosecutors’ offices in Serbia do not treat people in a non-discriminatory manner. We proposed that this evidence of institutional antigypsyism had two consequences – flowing from two strands of the Court’s case law – for the Court’s analysis of complaints by Roma in Serbia that they had faced an unfair criminal trial. First, the Court must be particularly attentive to stereotyping and other manifestations of discrimination against Roma in all aspects of the criminal proceedings. Second, in situations where there is evidence of institutional antigypsyism in the criminal justice system and State institutions more generally, the burden is on the Respondent State to show, inter alia, that all actors in the criminal justice system were trained, that non-Roma were convicted on similar evidence, and that attention was paid in the domestic proceedings to ensuring that the investigation and trial were not contaminated by discrimination. The Court could not ignore the specific, vulnerable position of a Romani criminal defendant accused of crimes which correspond to common tropes of antigypsyism.
The Court’s Judgment
The Court found a violation of the right to fair trial in respect of two of the applicants. For those two applicants, the statement made by the person who had died before trial was the crucial evidence in the case against them. The Court said there were not enough procedural safeguards in place (such as video recording of the questioning of the witness who later died); and the authorities had not treated the statements made by the witness who died before trial with enough caution. However, for the third applicant, the Court found that there was no violation of the right to a fair trial, because there was other evidence on which his conviction was based (DNA taken from a car implicated in the crime). So that third applicant had not been a victim of a violation of the right to a fair trial.
The Court summarised our third-party intervention in the judgment (as it always does), but the Court’s reasoning did not reflect the core argument of our intervention: that there is institutional antigypsyism in the Serbian criminal justice system.
The Court’s judgment can be found here.
The ERRC’s third-party intervention can be found here.
